Latimer v. Waddell
| Decision Date | 15 December 1896 |
| Citation | 26 S.E. 122,119 N.C. 370 |
| Parties | LATIMER v. WADDELL et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; Coble, Judge.
Agreed case by Elizabeth S. Latimer against Alfred M. Waddell, Jr. and others, submitted for decision. From a judgment for defendants, plaintiff appeals. Affirmed.
T. W Strange, for appellant.
Geo Rountree, for appellees.
The question in this case is, can an estate in fee simple be limited by a condition preventing alienation on the part of the grantee for the certain time of five years? No such limitation was recognized by or known to the common law. There cannot be a co-existence of a fee-simple estate and a total restriction upon its alienation during any period of time, however short it may be. One person cannot own the fee and another person the right of alienation. It is written in Littleton (section 360): "Also, if a feoffment be made on this condition, that the feoffee shall not alien the land to any, this condition is void, because, when a man is enfeoffed of lands or tenements, he hath the power to alien them to any person by law." Coke, in commenting on that section, confirms it, and adds to the principle releases, confirmations, and all other conveyances in which a fee-simple estate is passed, and also devises. Mr. Cruise (Cruise, Dig. tit. 13, c. 1, § 22), says: "A condition annexed to the creation of an estate in fee simple that the tenant shall not alien is void, being repugnant to the nature of the estate; a power of alienation being an incident inseparably annexed to an estate in fee simple." There is not the slightest modification of this principle to be found in any of the books of the early English common-law writers, except in Littleton (section 361), and Coke's Commentary on that section, and in Sheppard's Touchstone, at page 129. And the modification suggested by those writers does not permit a restraint upon alienation for a certain time, but only that it may be restrained in reference to a certain person or persons. The text of Littleton is as follows: "But if the condition be such that the feoffee shall not alien to such a one, naming his name, or to any of his heirs, or of the issues of such a one, or the like, which conditions do not take away all power of alienation from the feoffee, then such condition is good." Coke, in commenting upon this section, adds to it: "And in this case, if the feoffee enfeoff I. N. of intent and purpose that he shall enfeoff I. S., some hold that this is a breach of the condition." In the Touchstone the modification is in these words: "If a feoffment or other conveyance (by deed or will) be made of land, or a grant or rent in fee simple, by deed or will, upon condition that the feoffee or grantee shall not alien to certain persons ), as to J. S. or to J. S. and W. S., this is a good condition." This modification has been extended by recent writers on the Law of Real Estate. For example, it is said in 2 Washb. Real. Prop. p. 448: "There may be valid conditions restricting the free conveyance of an estate even in fee, as where the grantee is not to convey it before a certain time, or as not to convey to certain persons named." The authorities in the note to that section cited to sustain the author in the statement that the alienation for a certain time may be restrained do not bear him out. He refers to Attwater v. Attwater, 18 Beav. 330, and to 2 White & T. Lead. Cas. Eq. 794, and to Co. Litt. 223a, and to Anderson v. Cary, 36 Ohio St. 506. In all of these references, except the last one, the restrictions upon alienation were confined to certain individuals, and not in restraint of alienation for a certain time. In the last reference, that of Anderson v. Cary, the point raised was upon the right to prevent alienation for a certain time, and the decision of the court was against the position of the author. The language of the will, which gave rise to the suit in the last-named case, was as follows: "I give and bequeath the farm on which I now live *** to my two sons, Thomas and Lincoln, upon the following conditions: (1) I direct that they (the said sons) shall not be allowed to sell and dispose of said farm until the expiration of ten years from the time my son Charles Lincoln arrives at full age, except to one another; nor shall either of my said sons have authority to mortgage or incumber said farm in any manner...
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